RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 February 2008
	DOCKET NUMBER:  AR20070011053 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded to an other than honorable conditions discharge.

2.  The applicant states, in effect, that he has suffered long enough, and should be judged based on his military service not the incident.

3.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows that he enlisted in the Regular Army on 5 November 1998.  He was trained in, awarded, and served in military occupational specialty (MOS) 13E (Cannon Fire Directions Specialist).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.  

3.  The applicant's records are incomplete, but do not show any significant acts of valor during his military service.

4.  The applicant's record shows he was awarded the Army Service Ribbon.

5.  On 22 February 2001, the applicant pled guilty at a General Court-Martial to the following specifications:  conspiring with R____ W____ to commit arson on or about 19 October 2000; stealing a number six explosive powder increment, military property, of some value, on or about 19 October 2000; and willfully and maliciously burning a restaurant of a value of about $149,624.00, on or about 20 October 2000.  The Court sentenced the applicant to forfeiture of all pay and allowances, reduction to the rank of private/pay grade E-1, confinement for 10 years, and a dishonorable discharge.

6.  On 11 July 2001, the convening authority approved the findings in the case and only so much of the sentence extending to a reduction to E-1, forfeiture of all pay and allowance, confinement for 40 months, and a Bad Conduct Discharge.

7.  On 7 February 2002, United States Army Court of Military Review affirmed the findings of guilty and sentence as approved by the convening authority.

8.  Department of the Army, Headquarters, United States Army Armor Center, Fort Knox, Kentucky, General Court-Martial Order Number 128, dated 6 May 2003, announced the applicant's sentence had been affirmed and the provisions of Article 71c, Uniform Code of Military Justice, had been complied with.  The Convening Authority ordered the sentence including the bad conduct discharge executed.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged as a result of court-martial on 23 July 2003, under the provisions of Army Regulation 635-200 (Personnel Separations) with the separation code JJD and the Reentry code 4.  This form further shows the applicant's character of service as bad conduct.  This DD Form 214 also shows the applicant had 390 days of time lost due to confinement during his military service.

10.  Army Regulation 635-200 (Personnel Separations) provides for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial imposing a bad conduct discharge.  

11.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.





12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based on the fact that he has suffered long enough, and should be judged based on his military service not the incident was carefully considered and determined to be without merit.

2.  The applicant's records clearly show he was tried and convicted by a General Court-Martial for conspiracy to commit arson; stealing explosive powder; and willfully and maliciously burning a restaurant.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Passage of time is generally insufficient, standing alone to support an upgrade of a punitive discharge.  Generally, an applicant must show significant post-service achievements and community contributions before the ABCMR will upgrade a discharge as a matter of equity.




5.  After review of the applicant’s record, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an other than honorable, a general or an honorable discharge.

6.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_KLW___  _AU ____  _RDG___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





_Kenneth L. Wright___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.